Director of Public Prosecutions (Cth) v Jomaa [2014] NSWCCA 90
DPP (Cth) v De la Rosa [2010] NSWCCA 194
Hili v The Queen
Jones v The Queen (2010) 242 CLR 520
Klomfar v R [2019] NSWCCA 61
Pham v R
Regina v Chalmers [2007] NSWCCA 247
Webber v R [2014] NSWCCA 111
Texts Cited: Nil
Category: Sentence
Parties: Regina (Crown)
Source
Original judgment source is linked above.
Catchwords
Director of Public Prosecutions (Cth) v Jomaa [2014] NSWCCA 90
DPP (Cth) v De la Rosa [2010] NSWCCA 194
Hili v The QueenJones v The Queen (2010) 242 CLR 520
Klomfar v R [2019] NSWCCA 61
Pham v RRegina v Chalmers [2007] NSWCCA 247
Webber v R [2014] NSWCCA 111
Texts Cited: Nil
Category: Sentence
Parties: Regina (Crown)
Mr and Mrs Toafa are committed Christians and they brought up three children under the strict, but happy, guidance of the Seventh Day Adventist Church. They sit here today in Court to see their youngest son Timothy Toafa, born in 1990, facing sentence for an offence which carries a maximum penalty life imprisonment, under s 307 of the Criminal Code (Cth) of importing a commercial quantity of a border controlled drug.
He has been in custody since his arrest on 17 January 2018.
It is conceded that, when the sentencing court takes account of all the objective and subjective factors for the purposes of sentencing, a significant term of fulltime custody is required and it is unnecessary to consider any alternatives.
The short facts that can be distilled revolve around the ultimate importation of 32 kilograms of MDMA with a 77.9% purity. Mr Toafa pleaded guilty to the charge at the earliest possible opportunity and it is common ground that, in accordance with the decision of R v Xiao [2018] NSWCCA 2 in relation to Commonwealth sentences, a discount for the utilitarian value of the plea and the willingness to facilitate the course of justice should be in the order of 25% on the term of imprisonment.
The agreed facts together, with the sworn and largely unchallenged evidence of the offender today, demonstrate that he was a good athlete and not a good student. He was gullible, naive and trusting and not worldly wise. I am satisfied of that by the evidence of Mr Toafa and the evidence of his partner, Ms Henderson, who has been with him for eight years and is the mother of their son.
He had hopes of a high level career in rugby league but they did not come to fruition. In his early twenties he turned to drug use and was a regular cocaine user. His partner was in fulltime employment for most of the eight years they had been together apart from a short time off while she gave birth to their son. The evidence suggests that the most he has done is the occasional odd labouring job.
Somehow he got to a point where he owed $5,750 to an unknown drug dealer and was, as a result of that debt, led into establishment of a business of receiving packages which he says he thought and hoped would be a successful legitimate commercial enterprise, but was also used in the importation of the drugs to which I have referred.
He clearly acknowledged to the author of a psychologist's report, and to the Court in adopting that history, that he knew there was a real risk that the packages that he was ultimately involved in importing may contain illicit substances, but he thought that he had been given an opportunity to establish a legitimate business that would enable him to best provide for his family.
He set up a business called Easy Business Centre in November 2017 and between 25 November 2017 and 1 December he sent a number of consignments of what was said to be water filters to an address in Rotterdam in the Netherlands. Between 29 December 2017 and 9 January 2018 a total of 19 consignments came into Australia by the international post system. The first 13 of those were seized by Australian Federal Police officers on 3 January. They were unable to identify Dylan Tracy, the consignee. The consignee's address was a legitimate address which had been leased by Cootes Real Estate Agents to the offender as lessee. He nominated his residential address in Blacktown as the contact and gave his mobile phone number and the email address of the business centre. He paid $8,800 deposit being a three month lease and three month bond.
On 5 January 2018 the Australian Federal Police searched the premises and found a number of items consistent with the packaging business. Each of the contents of the 19 consignments were said to be filters. When they were examined, nine of them contained the MDMA, some in the first batch and some in the second batch.
The offender was first spoken to by Federal Police officers on 5 January 2018 and he participated in a record of interview in which he gave them details about the operation of the business that he had recently set up. The explanation that he gave either excited suspicion or did not satisfy whatever suspicions the officers may have had at that stage. They again saw the offender on 17 January 2018 and arrested him there. He was taken to AFP headquarters and participated in a record of interview but he provided no relevant comment about the matters.
His antecedents are relatively minor. There were a number of traffic offences and a minor drug offence in February 2010 dealt with by bonds. There was a matter before Blacktown Local Court in February 2011, drive on a road when license was cancelled, for which he was also given a section 10 bond. At the time of that court appearance the psychologist, Mr Sorrell had also provided a report. Mr Toafa was 20 years of age at that time. He was finding it difficult to gain employment and the offence was said to be a result of him not understanding what to do in relation to regaining his driver's license on completing a period of disqualification.
There is a significant quantity of subjective material in relation to the offender. First, a letter of apology handwritten by the offender in which he expresses his regret and remorse and his determination to be the best partner and father that he can and never to be involved in criminal behaviour again.
His partner, Ms Henderson has also written in frank but favourable terms of him in support of the evidence that she gave today, which was unchallenged. She knew that he was taking cocaine and said that he was on a rollercoaster. They were not talking or communicating much for a significant period before this offending and he, for the best part of two years, appeared to her to have been depressed. She attempted to get him to stop taking drugs but those efforts were to no avail.
His parents also say that they accept his expressions of remorse, regret and embarrassment and he has taken full responsibility for his actions and wishes to move on. Similar sentiments were expressed by Mr and Mrs Taovaka, long term family friends.
The evidence in the Crown case included photographs of some pages of the offender's diary which contained some insightful notes, setting out the way that he sees his problems and difficulties in life and what he needs to do to address them and they also set out what is, on the evidence, a short section of notes as to the amount of his drug debt.
The relevant features of the comprehensive report of the psychologist, Mr Sorrell, have been summarised by Mr Goldsworthy. In his submissions, apart from his personal background, it is noted that he was living with his partner and his parents in Blacktown until 2015 when they moved to Melbourne which caused significant disruption to his life. His parents were a factory worker and a nurse respectively and then they operated a grocery store. Once he realised that his opportunities for professional rugby league had passed him by he was despondent and drifted into cocaine use to elevate his depressed mood. He found himself indebted and behind in the rent and owing money to his drug dealer.
It was in a state of some desperation, and with the awareness that some of the incoming parcels may contain illicit substances, that he agreed to a request to set up the mail receiving business and collect the boxes in question. As was pointed out, he used his own personal contact details and he had no specific knowledge of the contents of the boxes and he left them unopened on his shelf for two weeks after their arrival.
He said that he considered assisting police but he decided he did not wish to provide information about the drug dealer and associates as he feared what the drug dealer would do to him and his family if he provided any details of them. So there is no question of any further discount for assistance for identifying other people involved in this operation. The fact that the offender has no doubt been carefully advised as to the likely benefits to identifying others supports the veracity of his expressions of fear of uncovering them.
Mr Sorrell said that due to his upbringing and his nature he has the potential to lead a productive and offence free life, but he needs assistance from a mentor who helps him plan out a positive future and supports him putting that plan into action. In terms of the sentencing regime that means, according to Mr Sorrell, that he would benefit from an extended period of supervision on his release to parole.
The sentencing process must be carried out in a way accurately summarised by the Crown in written submissions, namely according to Pt 1B of the Crimes Act 1914 (Cth), so that ultimately the Court imposes a sentence which is of a severity appropriate to all the circumstances of the offence. The authorities establish clearly that a critical consideration is the determination of the role of the offender in a drug importation enterprise. Here, the Crown says that he was a trusted participant, in that he was the lessee of the commercial premises and was involved in the deposit for collection of the consignments and he had a critical role in the enterprise.
The maximum penalty of course serves as a yardstick and a basis for comparison between this case and the worst case. The maximum penalty indicates that the offence is objectively very serious and the Court must have regard to the legislative object of suppressing the illicit trade in drugs. The weight of the drugs involved is a relevant factor but not determinative.
The common‑sense inference is that involvement in drug importation is for financial gain in the absence of anything to the contrary. The evidence is that the offender ultimately and indirectly hoped to gain a financial benefit in that if he set up the business, and it was successful, then he could get himself back on track and he would be able to repay his drug debt.
It is not submitted by Mr Goldsworthy that there is any evidence of particular hardship to the offender's family which would justify consideration as an exceptional circumstance but it is a matter to be taken into account. The Crown refers to the High Court decision in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 which reminds the Court that the simple presentation of supposedly comparable cases are not necessarily useful, because the Court must consider the objective and subjective circumstances of any particular case before it could become a useful comparator.
The Crown refers to a number of cases being Pham v R; Tang v R [2012] VSCA 101, Webber v R [2014] NSWCCA 111, Cheun v R [2009] NSWCCA 116, R v Holland [2011] NSWCCA 65 and R v Moore [2005] NSWCCA 212. It sets out in a helpful table the salient features of each of those cases. It will suffice to say that I broadly accept Mr Goldsworthy's submission in so far as the four categories set out by McClellan CJ at CL in DPP (Cth) v De la Rosa [2010] NSWCCA 194 remain of some relevance and that the cases referred to by the Crown are much more serious cases involving largely much greater and more valuable importations and they really represent the next level up in De La Rosa terms from that which Mr Goldsworthy puts in relation to this offender, namely that he is in the fourth of the lowest category of the four identified in that case.
In simplistic terms, Mr Goldsworthy put that his client was a patsy or a sitting duck who had no alternative other than to dob the drug dealers in, and for the reasons that I have explained in relation to the lack of any further discount for assistance, I accept that he had a genuine fear as to consequences for himself or his family as to what would happen if he had dobbed them. That is of course not to diminish his role, given that he clearly suspected that he was involved in the importation of illicit drugs, notwithstanding that he did not know what they were, how much of it there was and what it was worth.
I take account of the statements of Simpson J in Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247 where her Honour said:
"Those low in the hierarchy, such as couriers, are usually to be sentenced less harshly, because, although they are of fundamental importance in the execution of the object of the conspiracy - in a drug importation conspiracy, without couriers, no drug could or would be imported - they have no managerial or decision making function; and, experience shows, usually derive the least monetary reward."
As to objective seriousness, he had no negotiation with any other party or any control over part of the importation process and he was the recipient at the end of the line, who provided a postal address for the receipt of the drugs. As Mr Goldsworthy points out and concedes, clearly at the behest of and to protect the principal, he took all the risk with no direct cash reward other than the provision of funds for leasing the business premises which was a necessary capital expense for the importer. They made that financing arrangement in order to distance themselves from the operation, and it is clear as Mr Goldsworthy submits that the offender was at least reckless, that being a mental element for the offence.
As Bellew J said in Director of Public Prosecutions (Cth) v Blackman; Director of Public Prosecutions (Cth) v Jomaa [2014] NSWCCA 90,
"… particular care must be adopted when the Court is asked to engage in such a comparative exercise in cases of attempted possession of illicit drugs. This is because of the broad range of moral culpability…"
A particular focus of Mr Goldsworthy's submissions was the unchallenged diagnosis of a substance abuse disorder and depression made by Mr Sorrell. The causative link made by Mr Sorrell, is that his rational thinking may have been diminished by virtue of impaired mental functioning at the time. Whereas, now that he is drug free, he has the insight to recognise that he should have cut himself off from the drug dealer and drugs in general and try to defray the debt with other legitimate employment. It is therefore open to conclude that his moral culpability is somewhat reduced as a result of the impact of the diagnosed mental condition.
There is however no evidence that a custodial sentence would weigh more heavily on the offender and all the evidence is that he has made strong efforts towards rehabilitation in custody. He has been employed in a trusted position of head sweeper, he has lost weight, he is engaged in physical training, he has signed up for courses and has genuine aspirations to work in the field of helping young people on his ultimate release, and is also mentoring young people while in custody.
He has a lot of support from his family who are here today and has regular visits from his partner and family in custody. It is clear that the objective seriousness is towards the lower end of the range given the factors to which I have referred. I take account of the cases which have been referred to by Mr Goldsworthy including Klomfar v R [2019] NSWCCA 61, Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247, R v Davidson [2009] NSWCCA 150 and R v Labanon [2006] QCA 529 a Queensland case, and the varying discounts or lack of discounts in cases following jury verdicts in those cases.
Ultimately the Court has to balance the legislative intent to impose severe penalties on people involved in the importation of illicit drugs as reflected in the prescription of the maximum penalty of life imprisonment for this offence against the particular objective and subjective circumstances of this offender.
Those considerations lead me to the conclusion that the offender is to be convicted of the offence. I impose a sentence of imprisonment of seven years to commence on 17 January 2018, expiring on 16 January 25 and I impose a non-parole period of three years and eight months expiring on 16 September 2021.
Note - These extempore remarks were revised without access to the court file.
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Decision last updated: 26 July 2019